Error of law -- misleading the tribunal, and mistake of fact

Law and practice Mental Health Tribunal
1

Get into this: JB v Elysium Healthcare [2025] UKUT 9 (AAC) - Mental Health Law Online -and read the full judgment.

It’s exciting! What’s called an ‘error of law’ may well be something else. Of course, I’m not allowed to say what else.

Para 23 of the judgment states

The recordings made by JB immediately following the hearing before the Tribunal, adduced in this appeal, establish that Dr Al Noufoury did not intend that JB would resume psychological therapy. It is clear that the Tribunal was misled in this regard.

2 Likes
2

Well it’s nothing new - “mistake of fact” is an established (albeit rare) ground of appeal. See: E v SSHD [2004] EWCA Civ 49.

Interesting that the Tribunal didn’t pass any judgment on whether misleading the tribunal was malicious or not. I can’t imagine it was done accidentally, but I suppose some doctors telling the occasional porkie in tribunals is nothing new either.

3

What might the GMC think about such ‘errors of law’ and how they arose? Obviously I’m not asking anyone to read the GMC’s mind. Perhaps I should ask the GMC directly?

4

The doctor’s dead now so no longer registered with the GMC. I don’t know how they operate but I imagine they would otherwise investigate something like this.

5

Highly irrelevant relative to issue and principle.

6

I thought you wondered what the GMC would think of this case, but you must have meant in general. When you asked “What might the GMC think about such ‘errors of law’ and how they arose?” were you wondering what sanction a doctor might receive, or were you wondering whether the GMC would be interested at all, or were you wondering about something else? The MPTS website search results for “mislead” (or other similar words) might be helpful, depending on what you want to find out.

7

What I said was

What some thought and what specific words stated are often different things. It’s a matter in Forensic Psychology - no lecture on that today - some will be pleased to know. I can’t imagine why I might be occupied with the idea of dead doctor being arraigned before the GMC.

This post may be removed if it is too long or gives a perspective that is seen as wrong for a significant part. Only for those who may not have studied the case in great detail - and I know of no such person - the following is what happened. [Caution: I do not mean what I do not say].

The First-tier Tribunal (FtT) upheld JB’s continued detention under the Mental Health Act 1983, relying heavily on evidence that psychological therapy was available to him at The Spinney. Dr Al Noufoury, JB’s then-responsible clinician, indicated that therapeutic work—particularly to address JB’s barriers to engagement and his insight—was planned and would resume.

However, this turned out to be factually incorrect:

  • JB made recordings immediately after the hearing which revealed there was no intention to restart therapy.
  • His new clinician, Dr Kasmi, confirmed this in a formal statement, acknowledging that the Tribunal had been “misled” and that the psychological therapy described was not actually going to be offered.
  • Although the therapy was technically resourced at the hospital, the Upper Tribunal rightly pointed out—drawing from Rooman v Belgium and SF v Avon and Wiltshire—that “available” treatment must mean willingly provided, not merely possible in theory. [paraphrased from para 26]

The psychological therapy was described by the Tribunal as “key and entirely appropriate”, and its presumed availability was central to their finding that the statutory conditions for detention were met. This meant that:

  1. The Tribunal made a mistake as to an existing fact (availability of psychological therapy).
  2. That fact was uncontentious—no one now disputes the therapy wasn’t going to be given.
  3. The mistake was not caused by JB.
  4. And crucially, it materially influenced the outcome of the decision.

All four limbs of the legal test for a mistake of fact amounting to an error of law (set out in E v SSHD [2004]) were satisfied. The result: the decision was quashed and remitted to a new Tribunal. [See para 20]

From a regulatory standpoint, the fact that the doctor passed away means he is no longer subject to GMC fitness-to-practise proceedings, obviously. But from a legal, systemic, and ethical perspective—the case still matters very much and holds many lessons for medical doctors.

This case demonstrates that the impact of misleading or inaccurate evidence doesn’t disappear with a doctor’s disappearance by death. The Tribunal was materially misled, which resulted in an individual remaining detained by an unsound legal review of detention. [Caution: this does not mean that I am saying the Tribunal was at fault]

In an alternative perspective, “mistake of fact” and “error of law” were the legal system’s gymnastics for encapsulating that the Tribunal had been seriously misled by a doctor engaged in legal proceedings.

This case should be a springboard for systemic learning; GMC or no GMC. However, I suggest that doctors who are currently alive and not expecting to depart soon, demonstrate learning from this case, and study their GMC Standards - namely: Providing witness statements or expert evidence as part of legal proceedings 2024 - GMC. In particular, “12.4. You must make sure any statement or report you write, or oral evidence you give, is accurate and not misleading. This means you must take reasonable steps to check the accuracy of the information you provide, and to make sure you include all relevant information.”